[COURT OF CRIMINAL APPEAL.]

1946 Present: Howard C.J. (President), Cannon and Jayetileke JJ.

THE KING v. PEDRICK SINGHO.

APPLICATION 73 of 1946.

S.C. 3-M. C. Panadure, 3,620.

Joinder of three charges of murder in one indictment- Offences committed in same transaction-Separate trials not necessary where no prejudice is caused to accused-Criminal Procedure Code, 88. 179 (1), 180 (1).

 Where three charges of murder were joined in one indictment and the facts of the three murders were so interwoven as to constitute a series of facts forming one transaction-
   
Held, that the accused was not prejudiced by the joinder of more than one charge of murder in the same indictment.

APPLICATION for leave to appeal against a conviction in a trial before the Supreme Court.

Mackenzie Pereira (with him K. A. P. Rajakaruna), for applicant.- Three charges of murder were included in one indictment. The Crown sought to justify the joinder (a) under Section 179, (b) under Section 180 of the Criminal Procedure Code.

Section 180 does not apply because neither continuity of action nor community of purpose so as to make the alleged series of acts one transaction has been established. Joinder should not have been permitted under Section 179 (1) as the accused was prejudiced. Further, joinder of more than one murder charge in one indictment is undesirable. See King v. Senanayake 1, Rex v. Davies2 , Rex v. Large 3, Emperor v. Sherufath Allibuoy 4, Rex v. Jones 5 .

Cause of death of the deceased Lncihamy has not been satisfactorily established.

In view of the evidence of Guneris in certain particulars, e.g., his being handcuffed, &c., the question whether Guneris was an accomplice should have been placed before the Jury.

Foot notes

    1(1917) 20 N. L. R. 83.                                                                     3 (1939) 27 Cr. App. R. 65.

    2(1937) 26 Cr. App. R. 95.                                                                4 (1902) I. L. R. 27 Bombay 135 at p. 138.
                                                    5 (1981)13 Cr. App. R. 6

The evidence of Peter with respect to (a) the purpose of the visit of deceased Oderis, (b) undertaking of deceased Themis to return to the estate on a specified date, was irrelevant in that such evidence relates to facts prior to the transactions which resulted in their respective deaths and should not have been allowed to be led in the case. See Rex v. Arnolis Perera 1.

Section 178 of Criminal Procedure Code is imperative that every charge shall he tried separately except in certain cases. Sections 179 (1) and 180 (1) are the only sections which permit joinder of charges. Where joinders though permissible are not desirable recourse may be had to the English Criminal Procedure under Section 6 of our Criminal Procedure Code.

Counsel also cited Rex v. Southern 2, Archibold?s Criminal Pleadings, Evidence and Procedure p. 50 (1944 Edition), Woodroffe and Ameer All on Evidence, p. 159 (1941 Edition).-

H. H. Basnayake, Acting Solicitor-General (with him T. S. Fernando?  Crown Counsel ), for the Crown-

[The Court intimated that it was satisfied that the joinder of the charges was permissible under section 179 (1) of the Criminal Procedure Code, and desired to be addressed only on the question whether prejudice had been caused to the accused by the joinder.]

Where a Presiding Judge is of opinion that separate charges against an accused person should be tried separately, it has always been and still is the practice of the Crown to withdraw from the indictment such charges as may he necessary in the circumstances of the case. Apart from that practice there is no provision in the Criminal Procedure Code empowering a Judge to order separate trials is a case where only one accused is charged. The position is different where more than one accused is charged-vide section 1 84 of the Criminal Procedure Cod